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concluding that trial court did not have jurisdiction to terminate parental rights because Mississippi court had made prior custody determination for children and there were "no pleadings or proof in the record to support a conclusion that the Mississippi court relinquished its exclusive continuing jurisdiction"
Summary of this case from J. W. v. Tex. Dep't of Family & Protective Servs.Opinion
NUMBER 13-17-00676-CV
05-03-2018
IN THE INTEREST OF J.T.R. AND H.M.R., MINOR CHILDREN
On appeal from the County Court at Law No. 5 of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Hinojosa
Memorandum Opinion by Justice Rodriguez
This case involves the involuntary termination of parental rights. See TEX. FAM. CODE ANN. § 161.001 (West, Westlaw through 2017 1st C.S.). By two issues, appellant D.R., the father of J.T.R. and H.M.R., contends that: (1) the trial court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA); see id. § 152.001-.317 (West, Westlaw through 2017 1st C.S.); and (2) the evidence was legally and factually insufficient to support the trial court's finding that D.R. committed four violations under the termination statute. See id. § 161.001(b)(1)(D), (E), (N), & (O) (West, Westlaw through 2017 1st C.S.). We vacate the portions of the judgment that result in the termination of D.R.'s parental rights to J.T.R. and H.M.R. and dismiss that part of the case for want of jurisdiction.
The trial court proceedings also involved three other parties: the children's mother M.F.; her third child E.G.L., and T.A.L., E.G.L.'s father—none are parties to this appeal. We use initials to protect the identity of the minor children. See TEX. FAM. CODE ANN. § 109.003(d) (West, Westlaw through 2017 1st C.S.); TEX. R. APP. P. 9.8.
Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
I. JURISDICTION
By his first issue, D.R. contends that the UCCJEA precludes the trial court's exercise of jurisdiction in this termination case. See id. § 152.001-.317 (addressing, among other things, conflicting interstate child-custody orders entered by competing jurisdictions). Appellee the Texas Department of Family and Protective Services (the Department) responds by conceding that the Texas court lacked exclusive continuing jurisdiction to enter the termination order regarding J.T.R. and H.M.R. because (1) a Mississippi court made an initial custody determination in a 2013 divorce decree, and (2) proper steps were not taken in the Texas court to secure exclusive continuing jurisdiction. See id. §§ 152.204 (c-d), 152.207.
A. Standard of Review
Subject matter jurisdiction is never presumed, cannot be waived, and may be raised for the first time on appeal. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993); In re S.J.A., 272 S.W.3d 678, 682 (Tex. App.—Dallas 2008, no pet.). The UCCJEA provides a mechanism for reconciling jurisdictional issues regarding interstate custody disputes. See generally TEX. FAM. CODE ANN. § 152.201-.317. Whether a trial court has subject matter jurisdiction under the UCCJEA to terminate parental rights is a question of law, which we review de novo. See In re J.C.B., 209 S.W.3d 821, 822 (Tex. App.—Amarillo 2006, no pet.); see also In re F.M.-T., No. 02-13-00230-CV, 2013 WL 5517915, at *2 (Tex. App.—Fort Worth Oct. 3, 2013, no pet.) (mem. op.).
B. Applicable Law
Under the UCCJEA, the court that makes the initial "child custody determination" generally retains exclusive continuing jurisdiction over ongoing custody disputes. Saavedra v. Schmidt, 96 S.W.3d 533, 541 (Tex. App.—Austin 2002, no pet.). A "child custody determination" is an order of a court "providing for legal custody, physical custody, or visitation with respect to a child." TEX. FAM. CODE ANN. § 152.202(3). In this case, the parties do not dispute that the Mississippi divorce decree provided for the custody of and visitation with J.T.R. and H.M.R. and, therefore, was the initial child custody determination, placing exclusive continuing jurisdiction over ongoing custody disputes in that court. See Saavedra, 96 S.W.3d at 541. Absent the Mississippi court's relinquishment of its exclusive continuing jurisdiction, the Texas court was without jurisdiction to modify the Mississippi orders. See TEX. FAM. CODE ANN. § 152.201.
Texas Family Code section 152.204, however, authorizes a trial court's temporary emergency jurisdiction over a child custody determination in certain circumstances. Id. § 152.204. A Texas court has temporary emergency jurisdiction to make a child custody determination if the child is present in Texas and the child has been abandoned, or it is necessary in an emergency to protect the child because the child is subjected to or threatened with mistreatment or abuse. Id. § 152.204(a). Under this exception, when another state has made a prior custody determination, the Texas court must take certain steps to either cede jurisdiction to that state or to assume jurisdiction after a determination by the other state that Texas is the more convenient forum. See id. §§ 152.204(c-d), 152.207; see also MISS. CODE ANN. §§ 93-27-201-207 (West, Westlaw through 2018 R.S.) (setting out Mississippi's identical UCCJEA statutory provisions).
C. Discussion
As set out above, it is undisputed that a Mississippi court made a prior custody determination for J.T.R. and H.M.R in 2013. See TEX. FAM. CODE ANN. § 152.202(3). There are no pleadings or proof in the record to support a conclusion that the Mississippi court relinquished its exclusive continuing jurisdiction. See id. § 152.201; In re Forlenza, 140 S.W.3d 373, 376 (Tex. 2004) (orig. proceeding) (providing that the party initiating the suit has the burden to allege sufficient facts to establish subject matter jurisdiction). So the Texas trial court was without exclusive continuing jurisdiction to modify the Mississippi orders and to terminate D.R.'s parental rights to J.T.R. and H.M.R.
The Department acknowledges that a Mississippi court issued a judgment of divorce in April 2013. It granted a divorce to M.F. and D.R., awarded primary custody of J.T.R. and H.M.R. to M.F., provided D.R. with reasonable visitation, and ordered him to pay child support. D.R. included a copy of the judgment in the appendix of his appellate brief, although it was not produced to the trial court and does not appear in the appellate record. See Robb v. Horizon Cmtys. Improvement Ass'n, Inc., 417 S.W.3d 585, 589 (Tex. App.—El Paso 2013, no pet.) (holding that documents attached to a brief as an exhibit or an appendix, but not appearing in the record, cannot be considered on appellate review). The Department also recognizes that E.G.L. was not the subject of the prior Mississippi custody determination.
Nonetheless, the Department contends that the Texas court acquired temporary emergency jurisdiction under the UCCJEA to protect J.T.R. and H.M.R., who it alleges were either abandoned or subjected to or threatened with mistreatment or abuse. See TEX. FAM. CODE ANN. § 152.204(a, c-d). Yet the Department concedes, and we agree, that the record does not demonstrate that the Texas trial court communicated with the Mississippi court to decide the duration of the temporary orders or that it allowed the Mississippi court the opportunity to decline jurisdiction if it determined the court that issued the emergency order was in a better position to address the safety of the children. See id. §§ 152.204(c-d), 152.207. Although the trial court did not follow the steps necessary to acquire temporary emergency jurisdiction under the UCCJEA, the Department argues that the court assumed temporary emergency jurisdiction and seeks a remand so that the court can comply with the provisions of the UCCJEA. We do not agree with the Department's reasoning regarding temporary emergency jurisdiction.
This case is before us on a final termination order that modified initial child custody determinations in a court that has apparently not relinquished its jurisdiction; the trial court had no jurisdiction to enter the termination order. And, under the facts of this case, we cannot construe the order that terminates parental rights as one rendered pursuant to the Texas court's exercise of temporary emergency jurisdiction. See Abderholden v. Morizot, 856 S.W.2d 829, 834 (Tex. App.—Austin 1993, no writ) (per curiam) (holding that exercise of emergency jurisdiction does not confer authority to make permanent custody disposition or modify custody decree of court with jurisdiction); cf. Saavedra, 96 S.W.3d at 536 (construing the Texas court's custody orders, including an order refusing to enforce a California order, as temporary orders of placement rendered pursuant to the court's continued exercise of temporary emergency jurisdiction after the Texas court had attempted unsuccessfully on numerous occasions to communicate with the California court which had exclusive continuing jurisdiction about its concerns for protection of the children). And even were we to construe the termination order as a temporary emergency order, the proper remedy would be to dismiss the appeal for want of jurisdiction because we are generally without jurisdiction to consider appeals of temporary orders. See Saavedra, 96 S.W.3d at 536; see also TEX. FAM. CODE ANN. § 105.001(e) (West, Westlaw through 2017 1st C.S.) ("Temporary orders rendered under this section are not subject to interlocutory appeal.").
D. Summary
Based on the above, we conclude, as D.R. argues and the Department concedes, the Texas court was without jurisdiction to terminate D.R.'s parental rights to J.T.R. and H.M.R. We further decline to provide the Department's requested relief regarding temporary emergency jurisdiction. We sustain D.R.'s first issue. Because this issue is dispositive of the appeal, we need not address D.R.'s sufficiency challenge brought in his second issue. See TEX. R. APP. P. 47.1.
II. CONCLUSION
We vacate the trial court's judgment terminating D.R.'s parental rights to J.T.R. and H.M.R. and any orders related to that termination and dismiss that part of the case for want of jurisdiction, without prejudice to the Department to pursue proceedings that comply with the UCCJEA.
NELDA V. RODRIGUEZ
Justice Delivered and filed the 3rd day of May, 2018.